Citation Nr: 0701584
Decision Date: 01/19/07 Archive Date: 01/25/07
DOCKET NO. 05-13 717 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
the Republic of the Philippines
THE ISSUES
1. Entitlement to eligibility for nonservice-connected death
pension benefits.
2. Entitlement to accrued benefits.
3. Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The decedent had recognized Philippine Guerrilla service from
August 1944 to July 1945. He died in July 2003. The
appellant is his widow.
This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from a January 2005 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines.
FINDINGS OF FACT
1. The decedent had recognized Philippine Guerrilla service
from August 1944 to July 1945.
2. A claim for VA benefits was not pending at the time of
the veteran's death.
3. The decedent's death in July 2003 was caused by
cardiopulmonary arrest secondary to pulmonary obstruction,
chronic obstructive pulmonary disease, emphysema, and
pneumonia.
4. Cardiopulmonary arrest secondary to pulmonary
obstruction, chronic obstructive pulmonary disease,
emphysema, and pneumonia were not manifested in-service, a
cardio-vascular renal disease was not compensable
disabilities within one year of discharge from service, and
none of these disorders is shown to have been related to
service.
5. The competent evidence of record does not show that the
veteran's death was causally connected to a service-connected
disability.
CONCLUSIONS OF LAW
1. The requirements of basic eligibility for VA death
pension benefits based on qualifying service by the decedent
have not been met. 38 U.S.C.A. §§ 101(2), (22), 107, 1521,
1541, 1542 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.1, 3.6,
3.8 (2006).
2. The appellant has no legal entitlement to accrued
benefits. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2005); 38
C.F.R. § 3.1000 (2006).
3. A service-connected disability did not cause or
contribute substantially or materially to the cause of the
veteran's death. 38 U.S.C.A. §§ 1110, 1310, 5102, 5103,
5103, 5103A, 5107(b) (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.159, 3.303, 3.307, 3.309, 3.312 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Death Pension Benefits
VA shall pay pension for non-service-connected disability or
death to the surviving spouse of each veteran of a period of
war who met the service requirements prescribed in section
38 U.S.C.A. § 1521(j) of this title, or who at the time of
death was receiving (or entitled to receive) compensation or
retirement pay for a service-connected disability. 38
U.S.C.A. § 1542.
In order to establish basic eligibility for VA disability
pension benefits, it is required, in part, that the decedent
by a veteran and have active military, naval or air service.
See 38 U.S.C.A. §§ 101(2), (24), 1521(a), (j); 38 C.F.R.
§§ 3.1, 3.6. The term "veteran" is defined as a person who
served in the active military, naval, or air service, and who
was discharged or released therefrom under conditions other
than dishonorable. 38 U.S.C.A. § 101(2). "Active military,
naval, and air service" includes active duty. "Active
duty" is defined as full-time duty in the Armed Forces. 38
C.F.R. § 3.6(a), (b). "Armed Forces" consists of the
United States Army, Navy, Marine Corps, Air Force, and Coast
Guard, including their Reserve components. 38 C.F.R. § 3.1.
Service of veterans enlisted under section 14, Pub. L. 190,
79th Congress (Act of October 6, 1945), is included for
compensation and dependency and indemnity compensation, but
not for pension benefits. All enlistments and reenlistments
of Philippine Scouts in the Regular Army between October 6,
1945, and June 30, 1947, inclusive were made under the
provisions of Pub. L. 190 as it constituted the sole
authority for such enlistments during that period. This
paragraph does not apply to officers who were commissioned in
connection with the administration of Pub. L. 190. 38
U.S.C.A. § 107; 38 C.F.R. § 3.8(b).
Service as a Philippine Scout in the Regular Army inducted
between October 6, 1945, and June 30, 1947, inclusive, and in
the Commonwealth Army of the Philippines from and after the
dates and hours when called into service of the Armed Forces
of the United States by orders issued from time to time by
the General Officer, U.S. Army, pursuant to the Military
Order of the President of the United States dated July 26,
1941, is included as qualifying service for compensation
benefits, but not for pension benefits.
Service department certified recognized guerrilla service and
unrecognized guerrilla service under a recognized
commissioned officer, only if the person was a former member
of the United States Armed Forces (including the Philippine
Scouts), or the Commonwealth Army, prior to July 1, 1946, is
included for compensation benefits, but not for pension
benefits. 38 C.F.R. § 3.8(b), (c), and (d).
In general, service before July 1, 1946, in the organized
military forces of the Government of the Commonwealth of the
Philippines, while such forces were in the service of the
Armed Forces of the United States, including recognized
guerilla service, shall not be deemed to have been active
military, naval, or air service for the purposes of awarding
nonservice-connected pension benefits. See 38 U.S.C.A.
§ 107(a); 38 C.F.R. § 3.8.
With the above criteria in mind, the Board notes that in
November 1991 and August 2004 the National Personnel Records
Center (NPRC) verified that the decedent had recognized
Philippine Guerrilla service from August 1944 to July 1945.
This finding is binding and this agency does not have the
authority to alter it. Duro v. Derwinski, 2 Vet. App. 530,
532 (1992); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir.
1997). This service does not constitute qualifying military
service for pension purposes. See 38 U.S.C.A. § 107(a); 38
C.F.R. § 3.8. Therefore, because the appellant does not meet
the basic eligibility requirements for VA pension benefits,
her claim must be denied as a matter of law. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the
evidence is dispositive, the Board should deny the claim on
the ground of lack of legal merit).
Accrued Benefits
The law governing claims for accrued benefits provides that,
upon the death of a veteran, his lawful surviving spouse may
be paid periodic monetary benefits to which he was entitled
at the time of his death, and which were due and unpaid,
based on existing rating decisions or other evidence that was
on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R.
§ 3.1000.
Although the appellant's claim for accrued benefits is
separate from any claim that the veteran filed prior to his
death, an accrued benefits claim is "derivative of" that
claim. By statute the appellant takes the veteran's claim as
it stood on the date of his death. Zevalkink v. Brown,
102 F.3d 1236, 1242 (Fed. Cir. 1996). Hence, the United
States Court of Appeals for the Federal Circuit (Federal
Circuit) has concluded that, in order for a surviving spouse
to be entitled to accrued benefits, the veteran must have had
a claim pending at the time of his death for such benefits or
else be entitled to them under an existing rating or
decision. Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir.
1996).
In this case, the record fails to show that the veteran filed
another claim of entitlement to service connection for any
disability since his first and only post service claims were
denied by the Board in July 1992 and that decision was
affirmed by the United States Court of Appeals for Veterans
Claims (Court) in April 1993. Accordingly, the claim for
entitlement to accrued benefits is denied as a matter of law.
Sabonis, supra.
As to the Veterans Claims Assistance Act of 2000 (VCAA) and
the above death pension and accrued benefits claims, VA
notified the claimant that establishing entitlement to these
benefits requires, among other things, qualifying service and
a timely filed claim. See, e.g., RO letter dated in July
2004. These claims are being denied because the veteran does
not meet the statutory threshold for entitlement to the
benefits sought, i.e., qualifying service or a claim pending
at the time of death. See 38 U.S.C.A. §§ 107(a), 5121(c).
Therefore, because these decisions are mandated by the
veteran's failure to meet basic prerequisites, the Board is
entitled to go forward with adjudication of the claims
regardless of whether or not VA provided adequate notice and
assistance as required by the VCAA. See 38 U.S.C.A. §§ 5103,
5103A; Mason v. Principi, 16 Vet. App. 129, 132 (2002).
Further discussion of the VCAA is not required.
The Cause of Death Claim
VCAA
Under 38 U.S.C.A. § 5102 VA first has a duty to provide an
appropriate claim form, instructions for completing it, and
notice of information necessary to complete the claim if it
is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a
duty to notify the claimant of the information and evidence
needed to substantiate and complete a claim, i.e., existence
of a current disability; the degree of disability, and the
effective date of any disability benefits. The claimant must
also be notified to submit all evidence in her possession,
what specific evidence she is to provide, and what evidence
VA will attempt to obtain. VA thirdly has a duty to assist
claimants in obtaining evidence needed to substantiate a
claim. This includes obtaining all relevant evidence
adequately identified in the record, and in some cases,
obtaining a VA medical opinion. 38 U.S.C.A. § 5103A.
In this case, there is no issue as to providing an
appropriate application form or completeness of the
application. Written notice provided in April 2004 and July
2004, prior to the appealed from rating decision, fulfills
the provisions of 38 U.S.C.A. § 5103(a) save for a failure to
provide notice of the type of evidence necessary to establish
a disability rating and effective date for the claim on
appeal. The failure to provide notice of the type of
evidence necessary to establish a disability rating and
effective date for the claim on appeal is harmless because
the preponderance of the evidence is against the appellant's
claim and any questions as to the appropriate disability
rating or effective date to be assigned are moot. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
VA has also secured all available pertinent evidence and
conducted all appropriate development. In this regard, while
veteran's service medical records are not available, the RO
has obtained and associated with the record all available
alternative records as well as all identified and available
post-service records including his treatment records and/or
statements from Mauban District Hospital, Cesar B.
Villamayor, M.D., Quezon Memorial Hospital, and Tayabas
Community Hospital. Furthermore, in April 2006 the appellant
notified VA that she had no further records to file in
support of her claim.
The Board recognizes that the RO has not obtained a medical
opinion as to the relationship, if any, between the diseases
that caused the veteran's death and military service. In
this regard, the Board notes that the United States Court of
Appeals for the Federal Circuit (Federal Circuit) reviewed
the relevant subsection of the regulation, 38 C.F.R.
§ 3.159(c)(4)(i)(A)-(C), in Paralyzed Veterans of America,
et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334
(Fed. Cir. 2003). The Federal Circuit noted that the
regulation, unlike the statute, contained a requirement that
the claimant establish that the veteran has suffered an
event, injury, or disease in service in order to trigger VA's
obligation to provide a VA medical examination or obtain a
medical opinion. The Federal Circuit found that the
regulation properly filled a gap left in the statute. The
Federal Circuit referenced a preceding section of the
statute, 38 U.S.C.A. § 5103A(a)(2), which indicates that VA
is not required to provide assistance to a claimant if no
reasonable possibility exists that such assistance would aid
in substantiating the claim. The Federal Circuit found that,
if the evidence of record does not establish that the veteran
suffered an event, injury, or disease in-service, no
reasonable possibility exists that providing a medical
examination or obtaining a medical opinion would substantiate
the claim. In making this finding the Federal Circuit noted
the arguments made by the Secretary that "a medical
examination or opinion generally could not fill the gap left
by the other evidence in establishing a service connection."
Paralyzed Veterans of America, et. al., 345 F.3d at 1356.
In the instant appeal the appellant contends that the
cardiopulmonary arrest secondary to pulmonary obstruction,
chronic obstructive pulmonary disease, emphysema, and
pneumonia which caused the veteran's death where caused by
his military service. As will be more fully explained below,
the veteran's service medical records are silent for any
complaints or clinical findings pertaining to the above
problems and there is no evidence of any of these disorders
for decades following his separation from service. For these
reasons the Board finds that a medical opinion is not
necessary to decide the claim, in that any such opinion could
not establish the existence of the claimed in-service injury.
Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (the Board is
not required to accept a medical opinion that is based on the
veteran's recitation of medical history).
Hence, VA has fulfilled its duties under the VCAA. To the
extent that VA has failed to fulfill any duty to notify and
assist the appellant, that error is harmless since there is
no evidence the error reasonably affects the fairness of the
adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549
(Fed. Cir. 1998).
The Claim
The appellant contends that the cardiopulmonary arrest
secondary to pulmonary obstruction, chronic obstructive
pulmonary disease, emphysema, and pneumonia that caused the
decedent's death originated in military service. It is
requested that the claimant be afforded the benefit of the
doubt.
In order to establish service connection for the cause of the
veteran's death, the evidence must show that a disease or
disability incurred in or aggravated by service either caused
or contributed substantially or materially to cause death.
38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a).
In determining whether a service-connected disability
contributed to death, it must be shown that it contributed
substantially or materially; that it combined to cause death;
that it aided or lent assistance to the production of death.
It is not sufficient to show that it casually shared in
producing death, but rather it must be shown that there was a
causal connection. 38 C.F.R. § 3.312(c)(1).
It is the responsibility of the Board to weigh the evidence,
including the medical evidence, and determine where to give
credit and where to withhold the same. Evans v. West,
12 Vet. App. 22, 30 (1998). In so doing, the Board may
accept one medical opinion and reject others. Id. At the
same time, the Board cannot make its own independent medical
determinations, and it must have plausible reasons, based
upon medical evidence in the record, for favoring one medical
opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74
(1997). Thus, the Board must determine the weight to be
accorded the various items of evidence in this case based on
the quality of the evidence and not necessarily on its
quantity or source.
Initially, the Board notes that the death certificate lists
the veteran's immediate cause of death as cardiopulmonary
arrest secondary to pulmonary obstruction, chronic
obstructive pulmonary disease, and emphysema. Another
condition listed as contributing to his death was pneumonia.
Next, the Board notes that the veteran was not service
connected for any disability during his lifetime. Therefore,
further discussion of this method for establishing
entitlement to service connection for the cause of his death
is not warranted.
As to the appellant's claim that the cardiopulmonary arrest
secondary to pulmonary obstruction, chronic obstructive
pulmonary disease, emphysema, and pneumonia that caused the
veteran's death originated in military service, the Board
must whether service connection is warranted for any of these
disorders under 38 C.F.R. §§ 3.303, 3.307 and 3.309.
In this regard, service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. § 1110. Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d). Regulations also provide
that cardiovascular-renal disease will be presumed to have
been incurred in-service if it manifests its self to a
compensable degree within one year of the veteran's
separation from service. 38 C.F.R. §§ 3.307, 3.309.
With the above criteria in mind, while the veteran's service
medical records are not available, a March 1947 certificate
of the veteran's discharge from the Philippine Army reported
that he had no wounds or sickness in-service and was in good
condition when discharged. Similarly, in a March 1947 sworn
Affidavit of Philippine Army Personnel the veteran reported
that he had not incurred any wounds or illness in-service.
These records are negative for a diagnosis of cardiopulmonary
arrest, pulmonary obstruction, chronic obstructive pulmonary
disease, emphysema, or pneumonia.
Post-service, a September 1991 letter reported that the
veteran was treated at Tayabas Community Hospital in August
1987 for an upper respiratory tract infection. An October
1991 letter from Dr. Villamayor diagnosed pulmonary
emphysema. And, January 2002 and July 2003 treatment records
from Mauban District Hospital show the veteran's complaints
and treatment for chronic obstructive pulmonary disease. The
July 2003 treatment records from Mauban District Hospital
also show the veteran's complaints and treatment for
pneumonia.
The record, except for the July 2003 certificate of death, is
negative for a diagnosis of cardiopulmonary arrest or
pulmonary obstruction. The record is also negative for a
medical opinion linking cardiopulmonary arrest, pulmonary
obstruction, chronic obstructive pulmonary disease,
emphysema, or pneumonia to military service. See Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service-
connection requires finding a relationship between a current
disability and events in service or an injury or disease
incurred therein).
Therefore, the Board finds that the preponderance of the
competent evidence is against finding that cardiopulmonary
arrest, pulmonary obstruction, chronic obstructive pulmonary
disease, emphysema, and pneumonia had its onset in-service or
that they are related to any incident of service. See
38 C.F.R. § 3.303;
Moreover, given the length of time between the veteran's 1945
separation from military service and first being diagnosed
decades later with cardiopulmonary arrest, pulmonary
obstruction, chronic obstructive pulmonary disease,
emphysema, and pneumonia, the Board finds that there is no
continuity of symptomatology. Maxson v. West,
12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir.
2000) (service incurrence may be rebutted by the absence of
medical treatment for the claimed condition for many years
after service.).
Likewise, the presumptions found at 38 C.F.R. §§ 3.307, 3.309
are of no help to the claimant because the record does not
show the veteran being diagnosed with a cardiovascular renal
disease within the first post-service year.
As to the appellant's written statements to VA, the record
does not indicate that she has any training or expertise in
the field of medicine. Hence, her assertion of medical
causation is not probative because laypersons are not
competent to offer medical opinions. Espiritu v. Derwinski,
2 Vet. App. 492 (1992).
Given this evidentiary picture, the preponderance of the
evidence is against finding that the veteran was entitled to
service connection for any of the diseases that contributed
to his death and that a service connected disorder had a
causal connection to his death. 38 C.F.R. §§ 3.303, 3.307,
3.309, 3.312. Although the appellant is entitled to the
benefit of the doubt where the evidence is in approximate
balance, the doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim. Gilbert
v. Derwinski, 1 Vet. App. 49, 53 (1990).
ORDER
Entitlement to eligibility for death pension benefits is
denied.
Entitlement to accrued benefits is denied.
Entitlement to service connection for the cause of the
veteran's death is denied.
____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs